Allen Raymond's Congress Blog

“Every political physician will advise a different medicine.” Thomas Paine, Common Sense

Tuesday, July 16, 2013

The executive nominee deal to avert a Senate rules change is good only in that the controversial "nuclear option" was avoided (and even that is debatable). Most interesting is how the deal was reached.

Senate Minority Leader McConnell (R-KY) thoroughly withdrew from negotiations with Senate Majority Leader Reid (D-NV). McConnell is solely focused on his re-election to the extent that the Senate itself is only, at this moment through 2014 a tool to get re-elected. Taking a pragmatic point of view, who can blame him? Except, McConnell was ready to sacrifice the comity of the Senate for his own political objective and seemingly operated in bad faith.

Credit for averting the nuclear option and reaching a deal on executive nominees rests solely with Sen. Reid and Sen. McCain (R-AZ). But for McCain stepping in and picking up the ball, the rules negotiation would have gone south fast - resulting in the US Senate grinding to a paralyzing halt until after the 2014 elections.

The resulting deal is ridiculous; but better than alternatives. National Labor Relations Board nominees Sharon Block and Richard Griffin are to be withdrawn and replaced with two new nominees that will be brought immediately to the floor without hearings or mark-up. Further, the deal stipulates that "any one at all," may be nominated. This agreement swings the NLRB doors wide open for nominees who are vociferous advocates for labor and workers rights and interests - as it should be as these are a Democratic administration's nominees. Unfortunately, two highly regarded and credible nominees in Block and Griffin get thrown under the bus.

Sen. McCain, by being the deal cutter, just undermined Leader McConnell. Assuredly McConnell is seething over McCain's rogue negotiation but has nobody but himself to blame.

Monday, July 15, 2013

A rare event occurs today as the US Senate convenes in
the old Senate chamber in the Capitol. This is hallowed ground, as it was both the
Senate chamber from 1818 to 1859 and was the US Supreme Court chamber from 1860
to 1935. This evening the entire US Senate will convene for a private discussion
on how to avoid a mid-session rules change. No staff, no press, just Senators
talking to Senators about what may be done to avoid a rule change so that President
Obama may see his nominees for various positions come to the floor of the
Senate for a vote.

The odds favor a deal of some sort to prevent a controversial
rule change vote. The rule change being considered would prevent the use of the
filibuster to block executive branch nominees. For some this is unchartered
territory. For others it is routine. The reality is it is politics as usual
with the added drama of very high stakes.

On the Democratic side there is understandable frustration.
From the founding of the US government until 2008 only 20 executive nominees
have been filibustered. Since 2008 (the beginning of President Obama’s term) sixteen
executive nominees have been filibustered. Further, on 18 separate occasions since
1977 the Senate has changed its rules mid-session. Recent Senate Republican
obstruction on presidential nominees has persisted, despite two efforts (January
2011 and 2013 at the start of the 112th and 113th
Congress respectively) by US Senate Majority Leader Harry Reid (D-NV) to
observe Senate comity by agreeing to handshake deals with US Senate Minority
Leader Mitch McConnell (R-KY) to improve the pace of Senate business. Those
handshake agreements did not lead to comity, but further obstruction. Senate Republican
conduct points clearly to an effort to dissemble government by obstructing its
operations rather than passing new laws.

The Republican response has been to point to the many Obama
Administration executive nominees that have been approved (1560). Senate
Republicans also make the case that to change the rules mid-session will demean
the Senate and make it more like the US House where the minority has no voice. These
are sensible arguments until one considers Senator McConnell’s 2005 statement
that he is the “proud guardian or gridlock.”

Much of this debate centers on executive nominees to the
Department of Labor, National Labor Relations Board, Board of Consumer
Financial Protection and the Environmental Protection Agency. When one
considers the numerous anti-National Labor Relations Board message bills that have
passed in vain in the House, and the Senate Republican efforts to block NLRB
nominees, it appears beyond a reasonable doubt that Republicans are intent on circumventing
laws they dislike by using the filibuster to derail the wheels of government.

This all now builds to a crescendo in the old Senate
chamber this evening when a rules change is either averted via a deal, or the
Senate moves to a vote on a rule change using the constitutional option so that
a simple majority (as opposed to a 67 vote threshold) is enough to change the
rules.

A very real possible outcome, knowing that Senator
McConnell is vigorously fighting a rule change is that a deal will not be
reached. A rule change is the best political product for Senator McConnell.
Senator Reid and the Senate Democrats changing the rules with as little as 51
votes allows McConnell to bring Washington into his re-election campaign (so he
can campaign against President Obama and Democrats in the Senate), increase his
fundraising haul from corporate interests and change the rules as he sees fit
when the day arrives that he is Senate Majority Leader.

Senator Reid cannot now turn back and not see a rule
change through. He is so far out on a limb on this issue that he’s left standing
on the most fragile leaf. Reid has threatened a rule change too many times, and
settled for two bad handshake deals that he now cannot settle for anything less
than an outcome that guarantees executive nominees coming to the Senate floor
for a vote.

While a deal is still the most likely outcome of the
Senate conclave this evening in order to preserve Senate comity, ultimately the
outcome must be for these executive nominees to advance. Anything less means
the US Senate will grind to a halt until it is reorganized by the 2014
elections.

Thursday, May 23, 2013

It is important to note that Senator Lisa Murkowski (R-AK) voted affirmatively to pass all National Labor Relations Board nominees out of the Senate Health, Education, Labor and Pensions Committee. Her five yes votes in yesterday's committee mark-up included Richard Griffin and Sharon Block, the two nominees that met Republican resistance. No other Republican Senator on the HELP Committee voted in favor of Griffin or Block.Sen. Murkowski should be recognized and appreciated for her principled vote. Alaska's senior senator has previously stated that presidential nominees should be brought to the floor of the Senate. Sen. Murkowski may well oppose the nominations of Griffin and Block on the floor of the Senate, but her exemplary courage and high standard in the HELP NLRB nominee mark-up only emphasizes the lack of the same within the Republican Senate Conference.

Tuesday, May 21, 2013

Tomorrow the Senate Health, Educations, Labor and
Pensions Committee will mark-up nominees to the National Labor Relations Board.
The nominees are Democrats Mark Gaston Pearce (current NLRB chairman being renominated),
Richard Griffin and Sharon Block (both recess appointments) and Republicans
Harry Johnson and Philip Miscimarra. All are highly qualified nominees.The likeliest outcome is that the nominees
will be reported out of committee on a party-line vote.

These nominations have been tainted by rulings by both
the DC (Noel Canning v. NLRB) and Third (NLRB v. Vista Nursing and
Rehabilitation) circuit courts. In both instances the circuit courts ruled that
the intrasession recess appointments of Griffin and Block were
unconstitutional. Republicans, namely Senator Lamar Alexander (R-TN) have
rejected the validity of two of the three current NLRB board members (again,
Griffin and Block) due to the circuit court decisions, adding that both should
have stepped down from the NLRB after those decisions so as to properly
recognize the courts’ rulings.

A realistic assessment of Sen. Alexander’s position is
that it is not one based on principle, but instead is one of expediency and
obstruction. Senate Republicans largely desire to use procedure to depose the
NLRB so that is unable to function in its role to resolve disputes between
labor and management.

Prior to the DC and Third circuit court decisions the
precedent had been established that recess appointments are constitutional. The
precedent rests with three previous circuit courts opinions: US v. Allocco in
1962 where the Second Circuit Court affirmed intersession recess appointments;
US v. Woodley in 1980 where the Ninth Circuit Court did the same; and Evans v.
Stephens in 2004 where the Eleventh Circuit Court affirmed intrasession recess
appointments.

In 2004 President George W. Bush made an intrasession
recess appointment of William H. Pryor to a judgeship on the 11th
Circuit Court. In that ensuing decision contemplated the court’s legitimacy
given the intrasession appointment of Judge Pryor, the 11th Circuit
Court found that the appointment was legitimate to “assure proper functioning
of the government,” and that recess appointments “extend to the intrasession
and intersession.”

Notably, Sen. Alexander was in office at the time (2004) and
never raised any concern about the constitutionality of the Pryor intrasession recess
appointment as is now his position on the NLRB recess appointments.

Further, in NLRB v. Laurel Baye Healthcare of Lake Lanier,
Inc. the Fourth Circuit Court found that having only two sitting members of a
board of five was not a quorum and therefore NLRB decisions reached with less
than a quorum were invalid. Regardless, the NLRB with a board membership of two
continued to issue decisions. At no time thereafter did Sen. Alexander raise any
concern about the NLRB’s validity until recently introducing a bill to address
the issue while the current NLRB nominations are pending.

Tomorrow at the HELP Committee mark-up Sen. Alexander
will protest two of the five nominees for the reasons above and vote against
those nominations in committee. With Minority Leader Mitch McConnell (R-KY)
already demanding that the Griffin and Block nominations be withdrawn by the
White House it is clear that Senate Republicans are intent on disabling the
NLRB so as to leave American employees and employers without the ability
collectively bargain, or the ability to address certain unfair private sector labor
and management practices -- for the first time in 78 years!

Rather than attempt to repeal the National Labor Relations
Act of 1935 outright (and face the controversy that would follow), the
Republican Senate conference is using procedure to disable the only recourse
labor and management have to resolve disputes, to the benefit of management.
These tactics, while likely effective, do not pass the smell test.

Thursday, January 24, 2013

The major reforms to Senate Rule XXII sought by
progressives are not to be. Instead the likeliest reforms to occur on this as
soon as today will be along the lines of the Levin-McCain proposal. The odds
favor this bipartisan reform package and thus should be done with the 67 votes required by Senate Rule V (but not the Constitution). Majority Leader
Harry Reid (D-NV) is unlikely to use the Constitutional Option (or Nuclear
Option of passing a rule change with less than 67 votes, but with more than a
majority).

The significance of this is that the Senate should be
less burdened by minority obstruction of procedure. This is a good sign for
future negotiations around debt ceiling, sequester and a budget, as well as
Senate legislation generally.

Expect reforms to: limit debate on the motion to proceed
(the easiest path to obstruction); allow minority amendments (the
minority being able to offer amendments, or alternatively the majority being
unable to fill the amendment tree in some instances), a reduction in
post-cloture debate; and a streamlining of the conference process (collapsing
motions to insist, request and appoint into one non-divisible motion).

All that said, these reforms are window dressing as they
will be enacted as a Standing Order that expires at the end of the 113th
Senate. As important to realize, so one does not become giddy at the prospect
of legislative momentum in the Senate, is that all of these reforms are at the prerogative
of the Senate Majority Leader and does not in reality change the status quo.
Pragmatically Sen. Reid will be reluctant to allow Minority Leader Mitch
McConnell (R-KY) to offer amendments, which in turn allows the Motion to
Proceed to be debatable (and thus filibuster-able).

This is a very good sign in respect to the comity of the
Senate and could lead to constructive deliberation. Yet there remains immense
potential that the Senate falls back into the obstructionist traits that have
defined it the last four years.

Wednesday, January 23, 2013

Without Democratic votes the House Republican Leadership's debt ceiling
suspension bill, 'No Budget, No Pay' would not have passed. Of the 233 House
GOPers, only 200 voted Yea, requiring 18 Democratic votes to pass this
legislation. Speaker Boehner indeed got a majority of the majority, but 33
Republicans reneged, potentially leaving Republican leadership with their six
hanging in the wind.This vote speaks volumes about future budget negotiations, sequester and the
next debt ceiling clash in May and how the Republican House Conference may be
expected to perform if its leadership does not meet its conservative litmus test
(defined by its lack of definition; they'll know it when they see it) on mandatory and discretionary spending.

The House Republican Leadership’s debt ceiling suspension
vote today is politically savvy but is a legislative stunt. Speaker John
Boehner (R-OH) has only accomplished in furthering his obligation to the most
conservative in his conference. At the slightest hint that the deal that
results from this suspension does not pass the conservative litmus test there
will be revolt.

This bill is a legislative stunt in contrast with the
House GOP conference’s desire to return to regular order. This bill was not
spawned from regular order; there were no committee meetings. This is a bill
handed down by House Republican leadership without debate, including the unlikelihood
of an open rule when the bill comes to the floor.

House conservatives will likely vote for this debt
ceiling suspension bill today so Speaker Boehner is likely to get a majority of
the majority. Approving this bill places conservatives in a position to walk
away from their leadership if the legislative process works its way to a
compromise with the US Senate that they find unacceptable. This was on full
display yesterday when Rep. David Schweikert (R-AZ) said, “We’ll always play
great with the team when we’re doing what’s conservative.” Further, this vote
today will embolden House conservatives to shutdown the federal government in
February.

As to sequester, House conservatives have realigned their
line in the sand away from preserving defense spending and placed it squarely
on the $974 billion in sequester spending cuts with the intent to have a
balanced budget in ten years. So conservatives are ready to re-sequence spending
cuts as long as the cuts equal $974 billion; this demonstrates a willingness to
make defense cuts but likely would require budget cuts to
mandatory spending.

There remain House conservatives wary of today’s debt
ceiling suspension vote but on the whole conservatives see this as a vote they
must take in order to apply pressure on their leadership later.